RG (Suicide, Risk, Razgar Considered) Sri Lanka [2005] UKIAT 00072 (23 March 2005) [2005] UKIAT 00072

UKIAT
RG (Suicide, Risk, Razgar Considered) Sri Lanka [2005] UKIAT 00072 (23 March 2005)
[2005] UKIAT 00072 · 2005-03-23
[1]27 on the consideration of claims that either Article 3 or Article 8 of the European Convention will be engaged by virtue of a claimed suicide risk on or following removal of a claimant. For this reason, after reviewing the factual basis of the claimant's history and the changes which have taken place in Sri Lanka at paragraphs 5 and 6 of the determination, the psychiatric evidence before the tribunal is then set out at length at paragraphs 10 to 23 (evidence before the Adjudicator) and at paragraphs 29 to 34 (additional evidence before the Tribunal). Paragraphs 37 to 47 are concerned with the Article 3 claim, taking account of N [2003] EWCA Civ 1369 in the light of the guidance of the House of Lords in Razgar and conclude that Kurtolli [2003] EWHC 2744 (Admin) can no longer be regarded as raising any arguable issue that the ratio in N is not of general application including application to suicide risk claims. In order to succeed under Article 3 a claimant's case would have to be exceptional in the way found by the European Court in D v United Kingdom . Paragraphs 48 onwards consider the Article 8 claim, again by extensive reference to the guidance in Razgar. At paragraphs 58 to 63 the degree of deference to be accorded to the Secretary of State' views and the continuing effect of the starred decision of the Tribunal in M (Croatia) is considered. Paragraphs 64 to 71 are concerned with the speculative nature of claimed suicide risk by reference to Tribunal jurisprudence (paragraph 67 and 71) with fuller consideration of the ratio of Bensaid v United Kingdom in this respect at paragraphs 68 to 70 below. It is hoped that the sub-headings will be of some assistance in conjunction with this note in identifying the issues considered but neither form part of the determination itself. The appellant is a citizen of Sri Lanka of Tamil ethnicity born on 2 August 1978 in Chankanai in northern Sri Lanka. He entered the United Kingdom illegally on 15 March 1998 from Belgium and made an asylum claim in his real identity. He had previously made an asylum claim in the false identity of Silvan Nadaraja in Belgium on or about 11 February 1998 and the Belgian authorities accepted that they were the state responsible for examining his asylum application under Article 10(1))(e) under the provisions of the Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (the Dublin Convention). Accordingly the Secretary of State gave notice of his intention to issue directions for the removal of the appellant to Belgium under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971 by letter dated 8 January 1999. It transpired that the appellant had in fact arrived in Germany on 24 September 1997 and had subsequently twice tried to apply for asylum in Switzerland during October 1997 under various aliases, and also in Germany when he was returned there by the Swiss authorities for the second time. It was only then that he travelled to Belgium intent, as he says, on trying to reach the United Kingdom but claimed asylum in Belgium also when he was arrested in the course of his journey.[2]The appellant then initially instructed his solicitors to make an application for judicial review which was ultimately withdrawn on 16 January 2001 by which time the Human Rights Act 1998 and the Immigration and Asylum Act 1999 had come into force leading to a claim that his removal to Belgium would be in breach of Articles 3, 5, 6 and 8 of the European Convention on Human Rights. That claim was refused by the Secretary of State on 1 August 2001 and the appellant then exercised his right of appeal against that decision under Section 65 of the Immigration and Asylum Act 1999. The grounds of appeal were submitted on 15 August 2001 by his solicitors who had previously submitted a psychiatric report on the appellant made by Dr Coleman dated 14 July 2000, diagnosing him as suffering from post traumatic stress disorder (PTSD) and severe depression with suicidal ideation as a result of his experiences in Sri Lanka and his fears of removal from the United Kingdom.[3]Nothing further then happened for a little over two years until the Home Office referred the appeal to the Immigration Appellate Authorities on 11 November 2003. The appeal was listed for hearing shortly thereafter on 8 January 2004 before Mr Warren L Grant, an Adjudicator.[4]The basis of the appellant's asylum application has, of course, never been substantively considered because of the steps which he took in order to seek to avoid removal to Belgium when the initial decision was issued in 1999. That is, perhaps, unfortunate from his point of view because if his account of his history in Sri Lanka is credible, he might well at that time have been successful had he pursued his application in the country which had accepted responsibility for dealing with his claim. The Appellant's claim[5]In brief, his claim was that his sister had started helping the LTTE in northern Sri Lanka and had in the following year been arrested and tortured by the Indian Peace-keeping Force (IPKF). When the family arranged for her to be moved away on her release this led to the detention and torture by the IPKF of his father in 1989. Thereafter the family suffered as part of the civil population in a war situation. his grandmother was killed in an air raid in 1995 within sight of him and other members of his family. They moved away from their home area and from November 1995 the appellant assisted the LTTE by collecting money and food, distributing leaflets and putting up posters; an activity which he continued until in mid 1996 the family decided to return to Chankanai. He was detained for the purposes of interrogation with other youths in the course of that journey on suspicion that they might be LTTE supporters. In the course of that detention he was severely beaten and ill-treated. He was photographed and fingerprinted and released on payment of a bribe. He then returned to the family in the village and resumed his studies. But, within a few months rumours were circulating that he had helped the LTTE whilst he had been away from the village and in November 1996 the family home was searched and he was detained for 25 days at Manipay Camp where he was again interrogated regarding suspected LTTE support and tortured. He was released from that detention after a further bribe had been paid and the village headman had assured the army that he would be responsible for the appellant's good behaviour, at a time when the Red Cross had apparently also intervened. The LTTE were concerned, however, to find out whether he had given any information during his detention about their activities, but this came to nothing further until in May 1997 one of his relatives was detained and identified LTTE supporters to the army under torture, resulting in the torture of the LTTE members so identified and the revealing of the location of an LTTE arms store. Although the appellant was not directly connected with this event, his mother was concerned that it would reawaken possible interest by the LTTE in the family and lead to possible adverse interest in him. She made arrangements for him to move to Colombo and to leave the country, which he did on 12 July 1997. We have already noted his subsequent stays in several European countries before he finally arrived in the United Kingdom in March 1998. Effect of changed situation in Sri Lanka[6]The position in Sri Lanka changed dramatically, however, following the ceasefire brokered between the authorities and the LTTE in February 2002. It is quite clear from the Tribunal jurisprudence from Jeyachandran [2002] UKIAT 01869 and Brinston [2002] UKIAT 01547 onwards that, taken his claims at their highest, there is no prospect that the appellant's history in Sri Lanka would give rise to any successful claim that his return from mid 2002 onwards to Sri Lanka would engage either the Refugee Convention or Article 3 of the European Convention. He clearly falls into the category of those now regarded as having no current well-founded fear of persecution by reason of their ethnicity or imputed political opinion or of breach of their protected human rights under Article 3 on the basis of their past history.[7]Whilst the removal directions against which the appellant has appealed are to Belgium, it has been his consistently expressed fear that the effect of removal there would simply be a stage in his ultimate return to Sri Lanka. We cannot think that on the basis of his past history, taken at its highest, that is an unrealistic view on his part in relation either to his asylum claim or, so far as based on that history, his Article 3 claim.[8]The basis of his appeal both before the Adjudicator and before us is that his removal from the United Kingdom would be in breach of his protected human rights under Articles 3 and 8 of the European Convention. He relies in this respect on his current mental condition and the expressed views of two psychiatrists from Dr Coleman's initial report in July 2002 until the present time that removal would breach his human rights by reason of the real risk that he would commit suicide rather than be removed either to Belgium or to Sri Lanka. Dr Botting's report[9]Before the Adjudicator there were a number of medical reports. The earliest in point of time was a report by Dr Jonathan Botting of 29 June 1999 and was concerned with the physical scars and markings on the appellant. He claimed expertise in dermatological surgery at Queen Mary's Hospital, Roehampton, with expertise in skin wounds, scars and their healing, additionally to his general practice of some nine years' standing. He had worked as a dermatological surgeon for five years and lectures on this subject at the Chelsea and Westminster Hospital as well as preparing frequent medical reports on skin injuries claimed to result from assaults, minor and major. It was on the basis of this expertise that he recorded a large number of scars on the appellant's head and neck, upper limbs and lower legs. He noted the appellant's explanation for different scars based upon what he said had happened to him during his two periods of detention and concluded, by detailed reference to their nature, that the scars were consistent with the appellant's account of his torture in detention. He noted also a scar over the right upper arm and various indistinct scars over the left wrist which would all be entirely consistent with superficial burns caused by cigarettes and were, in his view, further evidence of the likelihood of past torture. Dr Coleman's reports[10]There were then two reports by Dr Coleman who is a consultant psychiatrist for the East London and the City NHS Mental Health Trust at East Ham Memorial Hospital. The first is dated 14 July 2000 and was based on examinations both in February and June 2000, a consideration of the appellant's asylum statement of 11 July 1999 and Dr Botting's report. He describes his mental state on examination on 17 February 2000 as one of severe depression in which he found it difficult to speak to him about the details of his experiences in Sri Lanka which caused him to become "very distressed, panicky, severely despondent, and obviously quite agitated". He concluded at that time that the appellant suffered from a profound and deep depressive illness and severe PTSD. When he re-examined him on 15 June 2000 this was because it was said there had been a marked deterioration in his condition consequent upon a letter from the Immigration Service of 3 June 2000 stating that he should be returned to Belgium for the asylum process. He said that the appellant "expressed a profound and deep shock at the possibility that he would be returned to Belgium" and Dr Coleman found it very difficult to deflect his mind from the "severe sense of despondency that had occurred as a result of this letter". Mrs Verisingham was acting as his interpreter and she gave an account of how he had suffered a virtual emotional collapse following receipt of that letter. Since the assessment in February 2000 he had been receiving regular treatment in the form of counselling for PTSD and a considerable degree of psychological support and educational help. The report continues:
"He described to me how he had settled down to live in Newham at 39 Melford Road where he had been helped considerably by a group of friends who were very supportive towards him. He told me how he had been registered since June 1998 with Dr Venugopal, a well-known General Practitioner in Newham. He said that he had with the help of the London Oriental Academy enrolled in a computer class and also English classes. Of perhaps greater significance he described to me a very supportive uncle who lived in East Ham, and whom he was able to visit on a regular basis to obtain whatever help he needs whether financial or social. ... He said that if he were forced to go to Belgium he would lose everything and have to restart his life all over again. He said that he had no friends in Belgium, did not know the language, had no social connections, no relatives and no hope of setting up the networks of social support that he had developed here in Newham. … He said that he felt a sense of despair and suicidal thoughts were prominent. He said to me without hesitation that he would certainly attempt suicide in this country before his removal to Belgium."
[11]Dr Coleman was of the view that the appellant was then in a worse state than when he originally saw him; there was a significant deterioration in his mental state which the doctor related to the arrival of the letter. He gave as his opinion that:
"Mr Gopalasingham suffers from severe post traumatic stress disorder (PTSD), as evidenced by a history of both physical and mental torture, followed by the development of nightmares, flashbacks, hyper-vigilance, phobic avoidance and the development of depressive illness."
Mr Gopalasingham suffers from severe depressive illness, as evidenced by a deeply despondent state of mood, suicidal thoughts, loss of energy, lethargy, physical retardation, social withdrawal, severe insomnia, loss of appetite, loss of concentration and forgetfulness. As described above, Mr Gopalasingham has suffered from an episode of torture within circumstances which were not only designed to inflict physical pain and agony, but also to ensure that mental torture occurred at the same time." The report then goes on to deal with the views of Dr Coleman that on the basis of his account the dehumanisation process during detention was particularly severe in that he was treated with utter contempt, forced to stay in the torture room after the period of torture, refused toilet facilities, refused hygiene and given little in the way of food or fluid. He then deals with suicide risk in the following terms:
"When studying suicide risk one has to consider various 'load factors' which progressively increase the risk of an individual committing suicide. Depressive illness in itself is probably the major cause of the vast majority of suicides. The addition of another mental illness, such as post traumatic stress disorder, adds to the suicide risk. Chronic physical disability as, for example, caused by torture, once again adds to the risk. Unemployment, isolation from family and being a single male, are other factors adding to the risks. Mr Gopalasingham therefore has all the factors that make him a very high risk suicide. The change from potential suicide to actual suicide usually occurs when a person feels that he is placed in intolerable circumstances from which there is no way out, or there is a certainty that they will be placed back in circumstances which they know will be intolerable to bear. In the case of Mr Gopalasingham, there is a substantial risk that he will commit suicide if he believes that he is going to be removed to Belgium or Sri Lanka. The whole point about suicide is that it is based on the distorted judgment of the future. The suicide occurs because the individual has a conviction, sometimes a greatly distorted conviction, that only endless mental anguish awaits him in the future. He does not wait for this anguish to arrive. In effect, the individual has reached a point of total despair about the future and cannot see any way out except suicide. Mr Gopalasingham, therefore, has a substantial risk of committing suicide in this country if he believes that he is going to be removed to Belgium or Sri Lanka. To the rational mind, Belgium may seem like a reasonable destination for Mr Gopalasingham. Mr Gopalasingham's mind, however, is not rational, it is grossly distorted by the effects of progressive illness and post traumatic stress disorder. When an individual suffers from a severe mental illness, such as depressive illness, a secure and stable locality, with friends, familiar faces and sights, supportive carers, a caring General Practitioner and, in time, a local care and psychiatric unit, are absolutely vital in the treatment of the illness. However, Mr Gopalasingham's worst fear, and his most likely reason for attempting suicide in this country if sent to Belgium, is that he is convinced that he will be transferred from Belgium back to Sri Lanka. In my opinion Mr Gopalasingham has a total conviction about his fate in Sri Lanka."
[12]Dr Coleman then finally deals with the importance of community care, saying that modern treatment in psychiatry involves not only medication, but also the setting up of what in effect is a 'community' to enable the patient to recover fully from whatever mental illness has afflicted him. He says this is the most fundamental reason for the development of community care in psychiatry and that the task of setting up a 'community' for a patient usually takes a considerable amount of time and effort by those involved in his care, often taking several years for it to be done successfully. He then continues:
"In the case of Mr Gopalasingham a 'community' has gradually been set up consisting of a network of friends, Mrs Verisingham, Dr Venugopal, a group of friends in Melford Road and regular treatment in the form of counselling for post traumatic stress disorder. The overwhelming consensus in psychiatry would agree that this 'community', set up to ensure the rehabilitation of Mr Gopalasingham, is critical for the resolution of his severe mental illnesses, and also his eventual rehabilitation in the wider community. The consensus view in psychiatry would also agree that his enforced removal to Belgium would be regarded as a shattering blow to his treatment and rehabilitation, not simply because of his arrival in a strange country, but because his 'community' was being shattered causing a critical dispruption of the treatment and rehabilitation processes at a very important stage in his rehabilitation. For self-evident reasons Mr Gopalasingham's 'community' cannot be transferred to Belgium and as a result his progress and treatment and rehabilitation will be set back for many years. Indeed, many experts in community psychiatry will say that it is the shattering of this 'community', rather than anything else which is the main risk factor in potential suicides."
[13]There is a further report from Dr Coleman dated 25 July 2001 following a further assessment on 4 June 2001. This report again reiterates the continuing effect of PTSD and depressive illness; that the appellant had said that he would commit suicide here if there was any prospect of his being returned either to Sri Lanka or to Belgium and that there was now nobody in Sri Lanka who could help him where he had no friends or relatives. Whilst he described a desire to do things with his life he had no motivation to carry them out. Beyond that the position had not changed from the earlier report and it was his view that the appellant still had all the factors that make him a very high risk of suicide and that there was a substantial risk that he would commit suicide if he believed that he was going to be removed to Belgium or Sri Lanka. Dr Patterson's report of 13 December 2003[14]The final report before the Adjudicator was one dated 13 December 2003 made by Dr Anne Paterson, a consultant psychiatrist in psychotherapy at the South Kensington and Chelsea Hospitals who has been concerned in psychotherapy since 1996, initially as Senior Registrar in psychotherapy in the west of Scotland. She has, to our knowledge, provided expert reports for other appellants before the Tribunal. She had considered the two reports by Dr Coleman and other relevant papers as well as interviewing the appellant. She records that he told her that he was convinced that the Sri Lankan authorities and the LTTE would both pursue him and that he would be safe nowhere in Sri Lanka, to which he was unable to contemplate return. He regarded being sent back to Belgium as tantamount to being sent back to Sri Lanka and said that he would kill himself rather than be returned to either country. She records:
"He said that about eighteen months ago he had become so convinced that he would be deported that he took an overdose of Anadin Extra intending to kill himself. He told me: 'It was all too much to bear.' He said that his flatmate had discovered the empty packet and taken him to Accident and Emergency. [He] said that he would take another overdose if he were told for certain that he must return to Sri Lanka. He recounted that his 'worst worry' is that he would not be able to stay in the UK. He told me that the support that he has in the UK from his flatmates and several others, including Mr Sivasubramanian and Ms Veerasinngham …. is keeping him alive. He said that in Sri Lanka he does not know the whereabouts of his family and fears that he would have no-one to turn to. In Belgium he told me that he does not know anyone. He recounted that, because of the uncertainty of his asylum situation, he is unable to escape from the endless fear of the future. He said that as time elapses he becomes increasingly hopeless about his situation. … [He] related that he is so preoccupied by the past and terrified of the future that he is unable to concentrate upon the present in the UK. He told me, for example, that he forgets what he has been asked to do and loses his possessions. He related that his concentration is so bad that he has hardly learned any English in six years and has now stopped trying to study. He related that he is always afraid that something bad will happen to him again. Mr Gopalasingham said, for example, that he is easily startled by the slightest noise and badly frightened by loud noises in the street or the sound of raised voices. He also says that he is afraid that the police would arrest him every time he signs on and he would be sent back to Sri Lanka. … He said that he often bangs doors and hits his head and arms against the wall. [His evidence before the Adjudicator was that he had done this on one occasion.] He told me: "
I just want to smash something." He explained that his mind seems to go blank in the aftermath of his rage. He said:
"At the time I think that I know what I am doing when I hit the wall and then afterwards I think: 'Why am I doing this, what have I done?' "
. Mr Gopalasingham also recounted pervasive sadness. He told me that he is unable to take pleasure or find meaning in anything in life. He related that he has lost interest in everything."[15]As to the current situation, he told Dr Patterson that he does not feel capable of working but he does not have a work permit or receive any benefits and is entirely dependent upon his flatmates for money, food and accommodation, spending most of his time alone in his room since he does not want to join in with the other members of the household and prefers not to go out of the house. He said that Ms Veerasingham, to whom Dr Coleman refers in his report, continues to see him weekly although he has dropped out of his studies. He told me that Mr Premathas [who lives in the same flat] accompanies him to the place where she works. He told me that she sometimes takes him to sign on at the police station, monthly. He said that she remains one of his main supports, together with his flatmates and Mr Sivasubramanian. He told me, repeatedly, that he could not survive without their help. He explained that the people he has met in the UK are more of a family to him than his own relations. Mr Gopalasingham related that he was not in contact with his parents in Sri Lanka and does not know their whereabouts. He told me:
"They haven't bothered to get in touch." …"
[16]He was not receiving any current treatment at the date of that report and had been prescribed paracetamol by his General Practitioner. Dr Patterson also saw Mr Premathas and Mr Sivasubramanian. Since there is a statement from Mr Premathas, but it is right to record at this point that he did refer to and confirm the taking of the Anadin tablets by the appellant and that he subsequently went with him to the local Accident & Emergency Department. Dr Patterson records that the appellant found the interview difficult and that he became forgetful and lacking in concentration and finally fell asleep at the point where she was speaking to Mr Sivasubramanian. He had told her that he did not think any treatment would be effective unless his anxiety of being deported was resolved and he was allowed to stay in the United Kingdom. He was adamant he could not present himself to a doctor in Sri Lanka. She says that he was not actively suicidal at the interview but repeatedly told her that he continued to think of suicide, especially after waiting so long to hear the outcome of his application for asylum. She gives it as her diagnostic view that the appellant is suffering from PTSD, that diagnosis being made according to the recognised international classification of diseases, and that he exhibits the characteristic phenomena of PTSD including a self-protecting dissociative reaction from his earlier experiences. …. Also he has characteristic intrusive recollections of the past traumas which led to that condition with typical symptoms of autonomic hyper-arousal and pervasive anxiety, such as hyper-vigilance, an increased startle response, panic and insomnia. His emotional withdrawal was evident upon examination and punctuated with angry outbursts which is also characteristic of survivors of trauma. He also describes himself as feeling guilty that he survived the bombing in which his grandmother and many others died and "survivor guilt" was again commonly found in victims of severe trauma. The result of any traumatic experience is recognised, she says, to be an intricate, dynamic interaction between the nature and the traumatic event, the personal meaning ascribed to the trauma and the individual's capacity to cope, based on past experiences, personality traits and social systems of support. She noted that he stated his current symptoms began following his second detention, although his mind had been disturbed ever since the church bombing, and it was significant that his detentions occurred within six months of one another and less than a year after he witnessed the carnage of the bomb blast so that there was little chance for him to recover psychologically after each traumatic event. She considered the cumulative effect of a number of significant traumatic episodes was likely to have successively eroded his psychological resilience. It was also relevant that he had these experiences when he was an adolescent of 17 not yet independent from his family. There were no predisposing factors for PTSD which antedated the traumatic experiences which gave rise to them and it was her opinion that the current delay was acting as a perpetuating factor for the trauma syndrome because the possibility of return acted as a powerful precipitant of "flashbacks" with subsequent panic, headaches and association. The uncertainty of his situation and the threat of being sent back continually undermined his capacity to develop adult autonomy. She also considered that he was suffering from depression which was one of the most common mental disorders found in survivors of trauma. This was characterised by pervasive low mood, guilt, low self-esteem, marked ideas of hopelessness, helplessness and pessimism together with disturbed sleep, reduced appetite, fatigue, decreased social and domestic functioning and the inability to take pleasure or find meaning in anything in life together with ongoing suicidal ideas. Again the uncertainty of his current status acted as a perpetuating factor for his depressive illness.[17]Dr Patterson's prognosis was as follows:
"First, from his account he has suffered severe, cumulative trauma during late adolescence. Secondly, he was not assured of being allowed to remain in the UK. Thirdly, he may have to face further trauma with regard to being separated from the supportive community in the UK that constitutes, in my opinion, a surrogate family upon whom he is crucially reliant. Fourthly, he is still faced with negotiating adolescent developmental tasks, at the later age of 25, underlined by the vicissitudes of cultural displacement. Without treatment, he is unlikely to recover or to negotiate the transition from adolescence to adult independence. There is a risk that he will develop an enduring change of personality because of the trauma he has recounted. Finally, his mental state is deteriorating, untreated, over time. If he can be helped to engage in treatment, in the UK, it is probable that, in time, his symptoms of depression and PTSD may be partially alleviated. It is unlikely that he will ever recover completely, however, particularly if he has to endure further trauma and loss."
[18]Dr Patterson then went on to recommend both anti-depressant medication and psychological intervention to treat his symptoms although it was likely to be difficult for him to engage in any type of treatment while he remained terrified of being returned.[19]Dr Patterson was asked for her views on the risk of suicide and we set out what she then said in full:
"In my opinion, his repeated statements that he would kill himself, in the UK, rather than be returned to Belgium, should be taken very seriously. Mr Gopalasingham explained his conviction that being sent to Belgium would only be a short step in the process of returning him to Sri Lanka. From his account, he equates being sent to Belgium with being returned to Sri Lanka. In evaluating the risk of suicide it is important to consider, first, that suicide is significantly more frequent in patients with severe depression, like Mr Gopalasingham, compared with the general population. Approximately 15% of severely depressed patients go on to kill themselves (Gelder, Mayou and Geddes [1999]). Secondly, Mr Gopalasingham describes two previous suicide attempts in the context of being told that he was unlikely to be successful in his application for asylum. Individuals with a history of deliberate self-harm have a 100-fold increased risk of suicide compared to the general population. The presence of previous suicide attempts is a high-risk factor for later suicide. Thirdly, Mr Gopalasingham has described the intensification of suicidal ideation with the continual delay in deciding upon his asylum claim. Finally, for Mr Gopalasingham, faced with being sent back to Sri Lanka via Belgium, committing suicide, in the UK, is likely to represent the only way in which he is able to try to assert the vestiges of his arrested personal autonomy that has been devastated by his ordeal and to save himself from the further torture and death that he is convinced awaits him."
[20]Dr Patterson was also asked what would be the position of the appellant if returned to Belgium without committing suicide in the United Kingdom. She said that she was of the view that it was extremely unlikely that he would be equal to the challenges of being sent back to Belgium and managing to cope alone and that there was the risk of exacerbating his depression and the existing suicidal ideation being greatly increased because he is likely to have lost all hope: hopelessness has a serious significant association with completed suicide. As he saw return to Belgium as facilitating his return to Sri Lanka "where he believes he is in mortal danger" it was her view that if he were prevented from killing himself either in the United Kingdom or while being returned it was likely that he would commit suicide upon his arrival in Belgium to avoid being sent back to Sri Lanka. Asked about his ability to access treatment for his mental condition either here or in Belgium, Dr Patterson said this:
"First, from his account, he is overwhelmed by profound hopelessness. In my opinion, this was confirmed by his presentation at interview in which I noted his despair and passivity. Secondly, he was clear, at interview, that he did not believe any treatment could help him while he was afraid of being sent back to Sri Lanka. As I have already described, Mr Gopalasingham equates being sent back to Belgium with an inevitable return to Sri Lanka. Thirdly, in my opinion, Mr Gopasalingham has become trapped in a vicious circle from which he is unable to see any escape. He recognises that he needs treatment but the symptoms of his mental illness, such as the predominant experience of himself as a passive victim, characteristic of PTSD and the hopelessness characteristic of severe depression, prevent him from seeking the help he needs. These dilemmas have prevented him from effectively seeking treatment in the UK where any contact with medical services has been initiated by his flatmate, Mr Premathas. The vicious circle I have described is likely to be exacerbated by the deterioration in his mental state on being sent to Belgium."
[21]Dr Patterson next dealt with a view as to the effect of actually being returned to Sri Lanka and, again, we think it appropriate to set out the relevant passage in full:
"I have already described the delay in deciding his claim for asylum and the consequent current uncertainty of the asylum situation as significant factors that perpetuate Mr Gopalasingham's disturbed state of mind, maintaining his symptoms of PTSD and depression and increasing the risk of suicide. Being sent back to Sri Lanka will undoubtedly, in my opinion, be experience of yet another life-threatening ordeal for Mr Gopalasingham. Mr Gopalasingham told me that he is unable even to contemplate going back to Sri Lanka. He maintains that he will be arrested, tortured and murdered by the SLA or LTTE if he is returned. At interview, with me, it was difficult to explore his ideas about any future in Sri Lanka because he continued to say: "
I will be killed." First, this may be understood as a rational fear of what might actually happen in the future based upon his history of previous traumatic experiences in several episodes of detention, interrogation and multiple torture. His conviction that he is in danger is strengthened by the knowledge that the LTTE are free to operate throughout Sri Lanka, following the ceasefire and by news from Sri Lanka that he recounts of the continuing murder of Tamils by the security forces in the north of Sri Lanka. Secondly, Mr Gopalasingham's perception of the danger that awaits him may also be understood as an unresolved symptom of PTSD, a further "flashback" phenomenon, in which the past trauma is alive, not only in the present but is also projected into the future. His evaluation of the danger awaiting him is also based, therefore, on perceptions that are distorted by symptomatic mental illness. Thirdly, for Mr Gopalasingham, being sent back to Sri Lanka is likely to be experienced as a further major, stressful life event, removing any vestiges of hope and personal autonomy that remain to him. From his account, he will also lose the physical sanctuary of the UK where he feels safe from the constant danger that he perceives of being arrested, tortured and murdered by the SLA or LTTE in Sri Lanka. He will also lose contact with his small community in the UK who are providing the only support for his fragile mental functioning. In my opinion being returned to Sri Lanka would, therefore, precipitate a worsening of both PTSD and depression and further undermine his already vulnerable mental state substantially increasing the risk of suicide."[22]Finally, we note that Dr Patterson said that she agreed with the diagnosis made by Dr Coleman and that, since the appellant had been seen by him, his social and domestic functioning had declined with increasing self-isolation. She therefore thought it likely that his depressive symptoms had deteriorated since Dr Coleman's last assessment, noting that he had attempted suicide since then and was increasingly preoccupied with his uncertain future.[23]That was the extent of the medical and psychiatric evidence before the Adjudicator at the date of hearing. It appears that pages 20-23 of Dr Patterson's report were not produced to the Adjudicator and neither have they been produced to us. Sustainability of the Adjudicator's findings[24]We now turn to consider the Adjudicator's determination and the challenges to it. This is an appeal to which the provisions of Section 101 of the Nationality, Immigration and Asylum Act 2002 are applied by virtue of the provisions of the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003 so that an appeal will lie to us only on the basis that there has been a material error of law on the part of the Adjudicator in reaching his findings. (See CA v SSHD [2004] EWCA Civ 1165 ).[25]In reaching his decision the Adjudicator considered the main thrust of the Appellant's claim at paragraphs 13 and 14 of his determination in relation to Article 3 and at paragraph 16 in relation to Article 8. He did not consider at all whethter the Appellant's core claims as to what had happened to him in Sri Lanka might be true. Whilst we accept that there was no requirement for any formal findings in this respect as he was not called upon to decide the asylum and Article 3 claims in relation to that history, it nevertheless seems to us that the challenge in the grounds of appeal in this respect has some force insofar as the possibility that the history was credible has relevance to the way in which the medical evidence needs to be addressed. Perhaps because of limiting himself in this way, and possibly also by simply factually misconstruing the effect of the timing of the medical reports and of the onset of the trauma which had led to the PTSD diagnosis, as he clearly did at paragraphs 13 and 14, the Adjudicator's primary finding was that no weight at all was to be placed on the psychiatric reports before him. Given the clear diagnoses in those reports and the absence of any countervailing evidence from the Respondent, it was simply not open to the Adjudicator to approach his findings on that basis as this Tribunal and the higher courts have so frequently made clear. Such an approach clearly demonstrates a fundamental and material error of law on the Adjudicator's part to his evaluation of the evidence before him.[26]Given the changes that have taken place in Sri Lanka, however, as Mr Middleton recognised, there was no arguable basis for seeking to run the Article 3 claim on the footing that the appellant required international surrogate protection from either the Sri Lankan state or the LTTE. He could not hope to succeed on such a basis were his substantive claims to be considered in this country and we see no reason to suppose that he would have any better chance of success in that part of his claim in Belgium. It seems to us, therefore, that it is entirely rational for the appellant to consider that a return to Belgium will not result in his being able to establish refugee status or breach of Article 3 by reason of his past experiences and that, to that extent, return would be but a stage in the process of ultimate return to Sri Lanka. Belgium is, however, a signatory to the European Convention and there was no evidence before us that Belgium would regard its obligations under that Convention differently from the way in which the United Kingdom courts would regard them. In that sense, therefore, removal to Belgium will not prejudice this appellant as regards the basis on which he currently seeks to put forward his claim and this is a relevant consideration in relation to his claim that his protected human rights under Article 3 would be breached by his removal from the United Kingdom. There is no evidence before us that similar medical treatment would not be available to him in Belgium and the only distinction between his situation in the United Kingdom and in Belgium is that his existing local support network would not be available to him there, a consideration which may have more relevance in relation to his claim that removal would be in breach of Article 8 rights to private life.[27]The Adjudicator's reasoning in paragraphs 13 and 14 is in our view rightly the subject of challenge in the grounds of appeal. Since the appellant left Sri Lanka in July 1997 and was first seen by Dr Coleman on 17 February 2000 there is nothing to show "that the appellant managed to cope with life out of Sri Lanka for at least four years before he attended Dr Coleman for his first assessment" as the Adjudicator states. The period is some two and a half years before that first attendance. Equally, the Adjudicator's statement that he does not believe the symptoms described to the psychiatrists can have began only since arrival in the United Kingdom must be correct but not in the sense in which the Adjudicator means it. It is quite clear from Dr Patterson's report that she regards the post traumatic stress disorder diagnosed as having commenced within a few months of the detentions in Sri Lanka and, indeed, that would be an essential point for the diagnosis of PTSD which according to the international standards which she applied must manifest itself within twelve months of the trauma which gives rise to it in order to be so classified. Whilst Dr Coleman fails to make any reference to the internationally recognised diagnostic criteria on which he bases his diagnoses, Dr Patterson does and has expressed her agreement with his diagnosis as we have noted above. There is no challenge to the medical qualifications of Dr Coleman and Dr Patterson and although this Tribunal has in the past commented critically upon Dr Coleman's reports because of the excessive language which they sometimes contain and the failure to identify the diagnostic approach taken, we see no basis for simply rejecting the diagnoses of two experienced psychiatrists in the absence of any contrary medical evidence submitted on the part of the Secretary of State. Whether or not the appellant's account of his past experiences giving rise to the symptoms observed by the two doctors was true, those clinically observed symptoms cannot simply be dismissed in the way in which the Adjudicator has sought to do. Whilst it is not appropriate for us to make any specific findings in relation to credibility, we observe that there is nothing in the detailed statement of the appellant which is contrary to the well-known objective country evidence as to the way in which Tamil suspects were treated by the Sri Lankan authorities at the relevant times and the corroborative effect of both Dr Botting's and the psychiatric reports as to the past existence of traumatic events giving rise to what they observed, has been totally ignored. For those reasons the Adjudicator's primary findings in relation to Article 3 are in our view unsustainable as a matter of law.[28]The Adjudicator's reasoning inn relation to the Article 8 claim is again, in our view, simply inadequate. It ignores the real issues as to the effect of deprivation of the existing support network on removal to Belgium on the assumption that the appellant can immediately replace this by contact amongst the Tamil community there, where he assumes that his uncle and friends will be able to visit the appellant. It seems to us that those two assumptions are at best speculative on the part of the Adjudicator. The appellant had been in the United Kingdom for almost six years at the date of the hearing before the Adjudicator. It was certainly arguable that he had established a private life here which would, by reference to the appropriate weight to be given to the psychiatric reports, be breached by his removal from the United Kingdom in terms of its effect on his mental and physical integrity. A consideration of his potential suicide risk coupled with the deprivation of his existing network of support is essential in this respect. These issues, as we say, are simply not adequately addressed by the Adjudicator by reference to the evidence before him and for that reason are also in our view unsustainable as a matter of law. Further evidence before the Tribunal[29]It is, therefore, appropriate that we should reconsider the appellant's claim as at the present date and for that purpose we consider it appropriate to take into account two later reports made by Dr Patterson dated 29 January and 3 November 2004 respectively as well as the statements of 28 January and 21 October 2004 of Mr Premathas.[30]The area of Dr Patterson's reports is really in the nature of a commentary upon the Adjudicator's findings. She restates the point that the appellant's perceptions of the dangers that await him "are not based upon rational thinking alone but are distorted by symptomatic mental illness". She says that it is upon his perception of return to Sri Lanka which would lead to further torture and his being killed "that the substantial risk of suicide is based". Pausing there, we note that in the passage from her original report which we have quoted at length that it was difficult to explore the appellant's ideas about any future in Sri Lanka because he had effectively closed his mind to this on the basis that he would be killed. Insofar as Dr Patterson considered this to be a rational fear, we attach no weight to this part of her opinion. Such a fear is not objectively well-founded for reasons which we have already stated and must be regarded as irrational on his part. It was a common thread between all the psychiatric reports that the irrationality of his perception of what would happen to him in Sri Lanka did not detract from its genuine nature and ought to be considered on that basis as something which he really believed. As to the Adjudicator's views of the suicide attempts, she says:
"I note further, Mr Gopalasingham's additional statement (not before the Adjudicator) that he thought that ten Anadin tablets, five times the recommended dose, would be sufficient to kill him. In assessing the seriousness of the suicide attempt, it is crucial to determine the perception of the patient as to the lethality of the method. Mr Gopalasingham states that he thought that it would kill him. In my opinion, this adds significant gravity to his attempt. I note Mr Gopalasingham's further statement in which he recounts that the medication that he was given in hospital was to make him sick. In my opinion, this would be in keeping with the routine treatment for overdose."
We note at this point that similar statements as to his intention to kill himself by taking the Anadins are in any event contained in the report which was before the Adjudicator on the basis of which Dr Patterson had concluded in her earlier report that the appellant had made "two previous serious suicide attempts", a view which we assume to be entirely dependent on the way in which he describes his intentions as opposed to the reality that neither of the two "attempts" could rationally be regarded as likely to have led to death or serious harm to him.[31]Dr Patterson summed up her views as follows:
"In my opinion, Mr Gopalasingham's understanding of the consequences of his appeal being dismissed is NOT that he would be returned to Belgium but that he would be returned via Belgium to Sri Lanka. I think that this is based upon his symptoms of PTSD and depression. In conclusion, I do not think that the Adjudicator has taken full account of the meaning and gravity of Mr Gopalasingham's mental state. In particular, the effect of his mental illness upon his capacity for thinking and making rational decisions about any matter relating to his previous ordeal or being returned to Belgium. I think, furthermore, that he has not considered my account of how the trauma has seriously arrested his adolescent development and left him highly dependent upon his surrogate family in the UK, especially with regard to his capacity to manage the everyday tasks of living and attend for the treatment that he requires. In my opinion, there remains a high risk of suicide in the UK as I describe fully in my previous report, if he is told for certain that he is to be sent back to Belgium or Sri Lanka."
[32]In her final report of 3 November 2004 Dr Patterson said in effect that there had been little practical change since the appellant repeatedly told her that he would commit suicide in the UK rather than being sent back either to Belgium or Sri Lanka and that although he had not made any further attempts to kill himself he continued to have suicidal ideas and impulses. In the meantime, he had attempted to return to college on the advice of his counsellor and with the encouragement of Mr Premathas. He was on anti-depressant which helped him to sleep a little better and was attending his General Practitioner's counsellor every fortnight. Her conclusions were, however, unchanged from those described in the first report which she had made.[33]Although he was not called to give oral evidence before us, there were two statements by Mr Premathas, the first shortly after the Adjudicator hearing and the second made in October last. Mr Premathas describes how he and the appellant share a bedroom in the flat in which they live together with a female Sri Lankan asylum seeker and her 4 year old daughter. It is not clear whether he has known the appellant for two and a half years since living in that flat or for five years because he says both in the course of his statement. He is also an asylum seeker. In general terms he supports the appellant's own account of his life there and the local community or network on which he depends. He confirms the occasion on which the appellant took some ten Anadin tablets and because of his concern about their effect that he called an ambulance and accompanied him to the Newham General Hospital where he was treated in Accident and Emergency over a period of some four hours. The appellant told him he had taken the tablets because the war film that they had been watching on television had really upset him and brought to mind the incident in which his grandmother was killed. He also refers to the second incident which he says took place about three months afterwards, just after the appellant had received a letter from his solicitors which he construed as meaning that he would no longer be allowed to stay in the United Kingdom. He says that he heard the sound of the sitting room windows being opened and went to see what was happening. The appellant was on a small balcony trying to climb over the railings to jump off but he pulled him back. The window was on the first floor.[34]We have not, of course, had the benefit of hearing any oral evidence capable of being tested by cross-examination to enable us properly to evaluate the various statements and reports which are before us. The situation as to the appellant's living conditions in the United Kingdom are dealt with in all the psychiatric reports and the two attempts at self-harm are dealt with in Dr Patterson's initial report at some length by way of cross-reference also to what Mr Premathas said to her then. These all remain largely consistent save as to the length of time which Mr Premathas has known the appellant. For the purposes of this appeal, we accept that the appellant has given an account of a past history of some support for the LTTE and we see no reason to doubt that his claims as to the death of his grandmother in an air raid, and his own two periods of arrest and detention with consequent ill-treatment are not reasonably likely to be true. His accounts are generally consistent both in his own statement and in the various medical reports. Dr Botting's report provides corroboration that the nature of the scarring observed is consistent with his detailed account and, in particular, shows scarring probably inflicted by the application of cigarettes to the skin which was a noted form of torture on the part of the Sri Lankan authorities at the relevant period. Similarly, we have no reason to question the diagnosis of PTSD and depression which we have recorded fully above, and that the effect of the appellant's mental condition leads him irrationally to believe that ultimate removal to Sri Lanka would expose him to a real risk of torture and possible death at the hands of the Sri Lankan authorities or the LTTE. There is, however, no evidence that he does not have an immediate and extended family available to him in Sri Lanka in his home area. When he left his parents and his two younger siblings were there and the family were clearly able to command support from the local community. If he and those upon whom he depends in this country have failed to make appropriate efforts to establish contact with his family in Sri Lanka, that is a matter which we regard with some scepticism, particularly as he procured a letter in November 2000 from the Sri Lanka Red Cross Society purporting to confirm his own then danger in Sri Lanka based on his past history there. Given that clear connection, we are unimpressed by a failure to seek to establish contact with his family in Sri Lanka and there is no reason why an appropriate support network should not continue to exist there in our judgment. The other matter about which we have reservations is the current degree of risk of suicide for this appellant given that although he has frequently expressed intentions of suicide over a number of years we do not consider that the evidence supports the conclusion that it is reasonably likely that he has taken any serious steps to that end to date. We are not persuaded, even to the lower standard applicable in human rights appeals, that the two episodes which took place now some two years ago can be placed in that category having regard to the consistent degree of hopelessness which the appellant is said to express and his belief that he remains likely to be removed from this country in accordance with a decision taken nearly six years ago. Although the Appellant may be irrational in his fear of what may happen to him in Sri Lanka, there is no evidence that he is generally otherwise irrational or that his condition is psychotic. We are not prepared to accept that taking 10 Anadin tablets or making sufficient noise in opening a window which was normally kept closed so as to alert his flatmate as to something unusual, demonstrate a serious attempt at completed suicide. Its acceptance in those terms by Dr Patterson in her reports does not appear to be to be clinically based but simply to rely on an unquestioning acceptance of what the Appellant claims, as Mr Premathas also appears to have done. Like the Adjudicator, we do not regard his past history of a willingness to seek to deceive the immigration authorities of various European countries as irrelevant to issues of personal credibility. The Convention basis of the human rights claims[35]The appellant's first claim is that his removal will be in breach of his protected human rights under Article 3 of the European Convention which provides as follows:
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
That is an unqualified right.[36]The second basis of claim is that removal will be in breach of his rights under Article 8 and this is a qualified right in the following terms:
"(i) Everyone has the right to respect for his private and family life, his home and his correspondence. (ii) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
If Article 8 is as a matter of fact engaged it is accepted that the regular enforcement of immigration control is one of the bases on which removal in breach of the protected human right may be proportionate under the derogation provisions of Article 8.2. The Article 3 claim[37]We deal first with the appellant's claim under Article 3 of the European Convention. In this respect Mr Middleton adopted a skeleton argument before the Adjudicator in relation to the law relating to Article 3 and the risk of suicide which we think it appropriate to set out in full here:
"In N [the reference is to the Court of Appeal decision in [2003] EWCA Civ 1369 ], the Court of Appeal considered an Article 3 claim based on the fact that the applicant could not afford HIV treatment in the destination country. The court rejected the claim. Laws LJ held that in cases dependent on the difference in treatment between the UK and the destination country, recourse to Article 3 was only justified 'where the humanitarian appeal of the case is so powerful that it could not reasonably be assisted by the authorities of a civilised country'. That standard was not met in that case. In Kurtolli [full reference [2003] EWHC 2744 (Admin) ], a certification case, the respondent sought to extend this reasoning to suicide risk cases. Silber J firmly rejected that argument, on two broad bases: first, the facts in the N were of a very different nature. The issue of the difference between standards of care and the availability of psychiatric care in the UK and the destination country did not arise. Secondly, the law continued to be governed by the Court of Appeal's decision in Soumahoro , one of the cases conjoined with Razgar (see paragraph 79 for a summary of Silber J's reasons for not extending N to suicide cases). In Soumahoro , which was also a manifestly unfounded certification case, the facts were somewhat similar to the present case (they are summarised in Silber J's consideration of the case at paragraph 44 of his judgment). Dyson LJ, who was part of the majority in N , noted in Soumahoro that there was uncontroverted evidence that if removed to France, there was a real risk that the appellant would commit suicide: 'If it was arguable on the evidence that there was a real risk of a significantly increased risk that, if she were removed to France, the appellant would commit suicide, then in our view her claim based on Article 3 could not be certified as manifestly unfounded.' (Paragraph 85). Whilst all cases must depend on their specific facts and the evidence in support, the above cases suggest that where there is clear evidence that removal will give rise to a serious risk of suicide, an appeal under Article 3 should be allowed. If this were not correct, both of the appeals in Soumahoro and Kurtolli would have failed."
[38]Mr Middleton then went on to submit that by reason of the Appellant's medical condition as diagnosed and that "his very fragile mental health is largely dependent on the 'community' of support he enjoys in the UK", combined with his own declared intention to kill himself and the two previous attempts, there was a serious significant risk that he would in fact kill himself in the United Kingdom. Further, that, absent his support community in Belgium, it was 'likely' that he would kill himself there according to Dr Patterson if he failed in his appeal. The medical evidence was not controverted by the Secretary of State and the fact that the appellant was not currently receiving treatment was not significant at the date of the hearing before the Adjudicator. Before us, Mr Middleton emphasised that it was not whether the fear that gave rise to his suicidal ideation was rationally based but whether it did, on the basis of the medical reports, exist as a matter of fact in his mind irrespective of the fact that it was based on irrationality rather than any objectively sustainable basis.[39]It is a frequent submission to this Tribunal that the decision of the Court of Appeal in N should be regarded as confined to its own facts but that is not a proposition which we accept. In contrast to the other cases cited, N was dealing with a substantive appeal from the decision of the Tribunal that removal of a Ugandan national suffering from full-blown AIDS and in receipt of triple combination therapy in the United Kingdom would not be in breach of her Article 3 rights notwithstanding the fact that she was unlikely to be able to access similar treatment in Uganda and would suffer a very early and degrading death there in contrast to her position in the United Kingdom where her life expectancy and health would be dramatically maintained for the better. To that extent, the reality of N' s situation was not speculative save in relation to the time which would elapse before her death in Uganda following the inability to access similar medical treatment as she was receiving here. The medical evidence was that her life expectancy would be under twelve months if she were returned to Uganda as opposed to her position here where with appropriate treatment she was likely to remain well for decades. Before the Adjudicator's N's appeal had been allowed following D v United Kingdom [1997] 24 EHRR 423 , another case in which the claimant was suffering from terminal AIDS and said to be likely to die in the very near future, whether or not he remained in the United Kingdom. At paragraph 39 of the judgment of Laws LJ in N , he points out that since D was decided the Strasbourg court had effectively been at pains, in decisions cited by him, to avoid any extension of the exceptional category which D represents and then continues: "This view is not I think shifted, but if anything confirmed, by what was said by the court in Pretty v United Kingdom [2002] 35 EHRR 1 at para 52: 'The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see… D …and also Bensaid …)' This court's obligation under Section 2(1) of the Human Rights Act 1998 is to 'take into account' (rather than follow) the Strasbourg jurisprudence. However, despite my reservations I am clear that it would not be right to hold that D v United Kingdom …should not be followed in our domestic jurisdiction. No such submission was made to us, and we must surely bear in mind what was said by Lord Slynn of Hadley… 'In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Convention on Human Rights.'[40]Laws LJ then continued in paragraph 40:
"But I am no less clear that D v United Kingdom should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a course rule and an unwise one: there may be other instances which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised state. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one's sympathy on pressing grounds. On its facts, D was such a case. I consider that any broader view distorts the balance between the demands of the general interest of the community, whose service is conspicuously the duty of elected government, and the requirements of the protection of the individual's fundamental rights. It is a balance inherent in the whole of the Human Rights Convention: see, for example Soering v United Kingdom [1989] 11 EHRR 439 , at para 89."
[41]That Dyson LJ had in mind such a wider application is made abundantly clear by what he says a little later at paragraph 42 where he refers to the existence of a line of cases concerning Article 8 rights said to arise where the person in question claims that his mental health will be compromised or damaged if he is returned by the Secretary of State. He notes that that position has recently been examined in Razgar, Soumahoro and Nadaraja [2003] EWCA Civ 840 and that there are also material passages in Bensaid v United Kingdom [2001] 33 EHRR 10 . He continues:
"We have not heard extended argument upon this appeal as to the scope of Article 8 in such circumstances. While I apprehend with respect that nothing I have said here is inconsistent with the court's reasoning in Razgar , it may be that the position regarding Article 8 will want some further scrutiny if my view of this case were to prevail."
[42]It is to be noted that the other cases referred to are all those where the appeal has lain against the Secretary of State's certification that the claim in question was manifestly unfounded so that if it could properly be concluded that there was nevertheless an arguable case, the certificate could not stand. The certification cases do not go to a merits conclusion but simply to the issue of arguability of the claim.[43]As we have said, we see no arguable basis for seeking to confine the principles enunciated in N , an Article 3 case, to its specific facts. We have now the benefit of the judgments of the House of Lords in R (Razgar) v SSHD [2004] UKHL 27 . Whilst that was a certification case concerned primarily with Article 8, we derive support for the views that we have expressed in relation to N from the judgment of Baroness Hale of Richmond at paragraphs 41-65 of Razgar . She draws the important distinction between 'foreign' and 'domestic' human rights cases and says this at paragraph 42:
"The distinction is vital to the present case. In a domestic case, the state must always act in a way which is compatible with the Convention rights. There is no threshold test related to the seriousness of the violation or the importance of the right involved. Foreign cases, on the other hand, represent an exception to the general rule that a state is only responsible for what goes on within its own territory or control. The Strasbourg Court clearly regards them as exceptional. It has retained the flexibility to consider violations of Articles other than Articles 2 and 3 but it has not so far encountered another case which was sufficiently serious to justify imposing upon the contracting state the obligations to retain or make alternative provisions for a person who would otherwise have no right to remain within its territory. For the same reason, the Strasbourg Court has not yet explored the test for imposing this obligation in any detail. But there clearly is some additional threshold test indicating the enormity of the violation to which the person is likely to be exposed if returned. …"
[44]After reviewing the Strasbourg Jurisprudence in relation to Article 8 cases and the degree to which they are to be regarded as domestic or foreign or hybrid in nature, the judgment continues as follows at paragraphs 54-59 which illustrates the difference in approach between Article 3 and Article 8:
"54. How then should the health cases be regarded? By a 'health case', I mean one in which the applicant's health needs are being properly or at least adequately met in this country and the complaint is that they will not be adequately met in the country to which he is to be expelled. Thus far, in my view, these have all been regarded as 'foreign' cases. They date back to D v United Kingdom …, in which the proposed expulsion of a drugs smuggler apprehended on arrival but in the terminal stages of AIDS after serving his sentence was found in breach of Article 3: 'Aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of a decision to remove the applicant would be a violation of Article 3." (Paragraph 54). 55. This principle is repeated in the very similar case of Henao v Netherlands (application no. 13669/03 (unreported)) 24 June 2003 , where there was no breach because the humanitarian considerations were not as strong. It has also been applied in cases where the applicant has been properly resident for some time but remains subject to expulsion, either because of criminal offences, as in BB v France, Reports of Judgments and Decisions 1998 – VI, page 2595 , or because of immigration control, as in SSC v Sweden [2000] 29 EHRR CD 245 . In all of these the health complaint depended on Article 3, although in BB v France , there was also a complaint of potential deprivation of moral support of family and friends. 56. This brings us to Bensaid v United Kingdom . … As with the HIV/AIDS cases, this was a case based upon the risk of injury to health in removing someone from a place where his health needs were being adequately addressed to a place where it was alleged that they would not be. As for the HIV/AIDS cases, the main complaint was raised under Article 3. The applicant was a schizophrenic who required medication. Without it, there was a risk of relapse into hallucinations and delusions involving a risk of self-harm and harm to others both here and in Algeria. The fact that his circumstances in Algeria would be less favourable than here was not decisive. The risks were speculative. There was a high threshold, especially when the case did not concern the direct responsibility of the state for inflicting harm. It did not fall into the exceptional category covered by D v United Kingdom . 57. The court's case law did "not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects upon physical and moral integrity" (paragraph 46). "
Mental health must … be regarded as a crucial part of private life associated with the aspects of moral integrity… The preservation of mental stability is…an indispensable precondition to effective enjoyment of the right to respect for private life [protected by Article 8]" (paragraph 47). But it had not been established that the risk of damage to his health in returning him to his country of origin will substantially affect his moral integrity to a degree falling within the scope of Article 8. Even assuming the dislocation caused by his removal could be regarded as affecting his private life – the relationships and support established here – it was justified under Article 8(2) (paragraph 48). 58. In my view, the court was here drawing a distinction between the 'foreign' and 'domestic' aspects of the case. The 'foreign' aspect was the difficulty in accessing appropriate psychiatric treatment in Algeria. This fell mainly to be dealt with under Article 3, although the court did not rule out that it might be dealt with under Article 8 if the threat to moral integrity was sufficiently severe. The court did not in so many words repeat the 'high threshold' point made in relation to Article 3 but if it applies to Article 3 it ought logically to apply to Article 8, unless this is thought unnecessary because the interference will always be justified under Article 8(2) unless the high threshold is reached. The "domestic" aspects might have been the dislocation in his private life here caused by removing him, but that was clearly justified under Article 8(2). 59. Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under Article 3 but succeed under Article 8. There clearly must be a strong case before the Article is even engaged and then a fair balance must be struck under Article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain."[45]Although Baroness Hale makes no specific reference to N , it seems to us implicit that she did not disagree with the views there expressed by the majority in the Court of Appeal. That decision is, however, specifically referred to and approved in the judgment of Lord Walker of Gestingthorpe at paragraphs 30-32 of his judgment in the following terms:
"30. In his clear and comprehensive opinion in the linked appeals of R (Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department [2004] UKHL 26 , Lord Bingham has drawn attention to the wholly exceptional nature of the deporting state's responsibility for ill-treatment or harm subsequently suffered in the receiving state. It is unnecessary to repeat all the citations but it is relevant to note that the Strasbourg Court's insistence on the need for "very exceptional circumstances" continues to be maintained in the most recent jurisprudence: see the admissibility decision in Henao v Netherlands … 31. In N v Secretary of State for the Home Department …Laws LJ (with whom Dyson LJ agreed, although Carnworth LJ dissented) accepted the submission of Counsel for the Secretary of State that the well-known case of D v United Kingdom …was an "extension of an extension". (Para 37). He concluded (paras 40 and 42): "…that the application of Article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised state". and "…that the position regarding Article 8 will want some further scrutiny if my view of this case were to prevail"
. In my opinion those conclusions are justified by the Strasbourg jurisprudence. 32. In his opinion in Ullah and Do Lord Bingham approved the formulation of the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department ( [2002] UKIAT 00702 * ):
"The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right will be completely denied or nullified in the destination country – that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state"
. I respectfully agree. I also respectfully agree with Lord Bingham's observation in this appeal (para 10 above) that where the appellant's case is based on his need for medical treatment or on his welfare, he could never hope to resist expulsion without showing "something very much more extreme than relative disadvantage" (as between the deporting state and the receiving state)."[46]Although N is not otherwise referred to in the judgments in Razgar there is nothing inconsistent in the other judgments with the approval which both implicitly and explicitly has been accorded to its ratio in the judgments of Baroness Hale and Lord Walker. Razgar was, of course, a certification case concerning third country removal to Germany for processing of Mr Razgar's asylum claim and included the claim that he was so opposed to being removed there that medical opinion supported a high risk of suicide. The context in which these references to N and its ratio are made seems to us to confirm that it would be wholly wrong to regard N as limited to its own particular facts and not to be of general application where Article 3 is prayed in aid. Following Razgar , and for the reasons which we have expressed, we do not consider that an argument based on what was said in Kurtolli raises any arguable issue as to the wide nature of the application of the principle he enunciated in N .[47]Taking the appellant's case at its highest it does not seem to us that it is of such an exceptional compassionate and compelling nature in relation to his mental condition as to reach the high threshold needed to engage Article 3 and for these reasons we dismiss the Article 3 appeal. The Article 8 claim[48]Turning to Article 8, we find that it is capable of being engaged both by reason of the nature of the private life which the appellant has, irrespective of its precarious nature, been permitted to establish in this country by reason of the support network which he currently enjoys and also because, following Bensaid , his current mental condition is in principle capable of engaging the Article also. This is one of the hybrid cases to which Baroness Hale refers in her judgment in Razgar because the way in which removal will impinge on his mental condition constitutes the 'foreign' element, whilst his removal from the support network which has been created over the years is referable to the 'domestic' element involved.[49]The majority view in Razgar was that the claimed breach of Article 8 by his removal to a third country, namely Germany, for evaluation of his asylum and human rights claims, could not as a matter of fact be said to be manifestly unfounded as it would need to be for the certification by the Secretary of State to be effective. In the lead judgment, Lord Bingham gives important guidance as to the function of the Adjudicator and the Tribunal in considering Article 8 appeals at paragraphs 17-20 of the judgment which we now set out in full:
"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an Adjudicator, as the Tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an Adjudicator. In a case where removal is resisted in reliance on Article 8, these questions are likely to be: (i) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? (iii) If so, is such interference in accordance with the law? (iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (v) If so, is such interference proportionate to the legitimate public ends sought to be achieved? 18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an Adjudicator, that the answer to Question (i) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (ii) reflects the consistent case law of the Strasbourg Court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello Roberts v United Kingdom [1993] 19 EHRR 112 . If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If Question (iii) is reached, it is likely to permit of an affirmative answer only. 19. Where removal is proposed in pursuance of a lawful immigration policy, Question (iv) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg Jurisprudence (see Ullah and Do , para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern, democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an Adjudicator answering this question other than affirmatively. 20. The answering of Question (v), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the Adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by the Adjudicator on appeal. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213 , paragraph 25, the Immigration Appeal Tribunal…observed that: "although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."[50]In this passage of his judgment Lord Bingham restates the basis of approach which has long been observed by Adjudicators and the Tribunal on the basis of its own earlier jurisprudence. In making the above formulation, we note that the only authority cited to the House of Lords concerning the nature of the exercise of those functions, taking into account the deference to be shown to the executive decision of the Secretary of State, was Razgar itself in the Court of Appeal since it does not appear that either Edore v SSHD [2003] EWCA Civ 716 or the starred decision in [2004] UKIAT 00024 M (Croatia) were cited in argument.[51]In Razgar , however, the Court of Appeal deal with this issue partly by reference to the ratio of Edore and the earlier judgment which it adopted of Moses J in R (Arlech) v SSHD [2003] EWCA 521 Admin . There Moses J held that in a case 'where there is no issue of fact' and where the only question is 'whether the Secretary of State has struck the right balance between the need for effective immigration control and the claimant's rights under Article 8' it was not open to the Adjudicator to substitute his own decision for that of the Secretary of State unless the latter was 'outwith the range of reasonable responses'. Moses J put it in the following terms:
"It is the Convention itself and, in particular, the concept of proportionality which confers upon the decision-maker a margin of discretion in deciding where the balance should be struck between the interests of an individual and the interests of a community. A decision-maker may fairly reach one of two opposite conclusions, one in favour of a claimant, the other in favour of his removal. Of neither could it be said that the balance had been struck unfairly. In such circumstances, the mere fact that an alternative but favourable decision could reasonably have been reached will not lead to the conclusion that the decision-maker has acted in breach of the claimant's human rights. Such a breach will only occur where the decision is outwith the range of reasonable responses to the question as to where a fair balance lies between the conflicting interests. Once it is accepted that the balance could be struck fairly either way, the Secretary of State cannot be regarded as having infringed the claimant's Article 8 rights by concluding that he should be removed."
[52]In Edore the Court of Appeal found that analysis 'entirely convincing' and said that where the decision was one which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play:
"…then the Adjudicator cannot characterise that a decision 'not in accordance with the law' and so, even if he personally would have preferred the balance to have been struck differently (i.e. in the appellant's favour), he cannot substitute his preference for the decision in effect taken."
[53]Both those cases had dealt specifically with the situation where there was no factual issue not available to be taken into account by the Secretary of State. In Razga r the Secretary of State had not even considered the application of Article 8 and the Court of Appeal therefore considered the position where on his findings of fact an Adjudicator came to the conclusion that the balancing exercise carried out by the Secretary of State had been on 'a materially incorrect and/or incomplete factual basis'. They then dealt with this different situation in the following terms at paragraph 41 of the judgment of Dyson LJ:
"41. Where the essential facts found by the Adjudicator are so fundamentally different from those determined by the Secretary of State as substantially to undermine the factual basis of the balancing exercise performed by him, it may be impossible for the Adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself. Even in such a case, when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the Adjudicator should pay very considerable deference to the view of the Secretary of State as to the importance of maintaining such a policy. There is obviously a conceptual difference between: (a) deciding whether the decision of the Secretary of State was within the range or reasonable responses; and (b) deciding whether the decision was proportionate (paying deference to the Secretary of State so far as is possible). In the light of Edore v SSHD …we would hold that the correct approach is (a) in all cases except where this is impossible because the factual basis of the decision of the Secretary of State has been substantially undermined by the findings of the Adjudicator. Where (a) is impossible, then the correct approach is (b). But we doubt whether, in practise, the application of the two approaches will often lead to different outcomes."
[54]As we have derived all this material from the Court of Appeal judgments in Razgar , it is apparent that all such matters were before and taken into account by the House of Lords in their judgments. There is nothing in any of those judgments which suggests that the two alternative approaches set out in Razgar are in any way wrong. They must, therefore, in our view be taken as an authoritative statement of the law as considered and reviewed by the House of Lords in Razgar .[55]The factual basis of Mr Razgar's claim bears a striking similarity to that of this appellant. He claimed to have been detained and ill-treated in Iraq and that this had resulted in his suffering from PTSD which led to a need for pharmacotherapy and cognitive behavioural therapy, and a happy and safe environment in which to receive such treatment. The psychiatric report considered by the Secretary of State said this:
"Incarceration and custody is causing a relapse on the progress Mr Ali has made during treatment. He would be deprived of his support network from family [cousin and friends], when he is removed to Germany. He would not have access to medication or Cognitive Behaviour Therapy as he would only be given temporary immigration status by the authorities. His accommodation in a refugee camp will cause flashbacks of his incarceration in prison in Iraq and worsen his depressive mood and sense of despair. I feel that sending him back to Germany of even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself."
[56]In the House of Lords it is right to say that Mr Razgar's position was not regarded with any particular enthusiasm from the point of view of his likely success in relation to his Article 8 claim if substantively considered. Having concluded that an Adjudicator might well answer the first four questions which he posed in the affirmative, Lord Bingham concluded at paragraph 24 as follows:
"… Question (v), being more judgmental, is more difficult and, as already observed, the Secretary of State and the judge did not consider it. The Secretary of State, moreover, failed to direct himself that Article 8 could in principle apply in a case such as this. Question (v) is a question which, on considering all the evidence before him, an Adjudicator might well decide against Mr Razgar. If, however, his phobia of returning to Germany were found to be genuine (whether well-founded or not), and if his account of his previous experience (including his account of the severe brutality he claims to have suffered) were found to be true, I do not think one can rule out in limine the possibility of a finding, properly made, that return to Germany would violate Mr Razgar's rights under Article 8. It follows that in my opinion … the Secretary of State would not properly certify this claim to be manifestly unfounded."
Lord Steyn simply agreed with the judgment of Lord Bingham but in so doing Lord Carswell gave a reasoned judgment. It is appropriate that we should quote at some length from his judgment because of the light it sheds on the general approach both under Article 3 and Article 8:
"72. For the reasons given by your Lordships in the appeals of R (Ullah) v Special Adjudicator and Do v SSHD [2004] UKHL 26 , it must now be accepted that in principle Article 8 could exceptionally be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even though they do not amount to a violation of Article 3. In order to bring himself within such an exceptional engagement of Article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the Article, which in effect constitutes a complete denial of his rights. It is necessary accordingly to consider the present case in order to determine whether an Adjudicator could arguable find that the removal decision is a breach of Article 8. 73. I would not regard the conditions in which the appellant may be detained in Germany, taking the case at its height in his favour, as capable in themselves of constituting such a flagrant breach. They may be regarded as somewhat Spartan and it would be legitimate to argue that they are repressive, but in my judgment they fall a long way short of a flagrant violation of the appellant's Article 8 rights. If he is to make out any case under Article 8 I consider that it must be founded on the possible effect on his mental health. 74. The precise extent of the interests which Article 8 is capable of protecting still remains to some degree uncertain and, as my noble and learned friend Lord Walker of Gestingthorpe pointed out in his opinion in the present appeal, the language of some of the statements in the Strasbourg Jurisprudence must be treated with some caution. It does appear to be clear enough, however, from pages 219-220 para 47 of the judgment in Bensaid v United Kingdom … that the preservation of mental stability can be regarded as a right protected by Article 8. The issue therefore is whether the removal of the appellant to a third country, Germany, could arguably be said to amount to a flagrant denial of his Article 8 right to the preservation of his mental stability. 75. It is, I think, important to note that the deleterious effects on the appellant's mental health described by Dr Sathananthan appear to stem from his fear that Germany will decide to return him to Iraq. It is to be assumed that Germany will observe its obligations under the Geneva Convention and the European Convention on Human Rights and will properly and conscientiously apply their provisions. If that be so, then the appellant's fear should be regarded as lacking in rational foundation. If they nevertheless exist in an extreme form, sufficient to make him suicidal at the prospect of removal to Germany, even if unjustified or irrationally held, the question has to be considered whether that may arguably be sufficient to found an allegation that his Article 8 rights have been violated. 76. In my opinion it could in principle be sufficient on a tenable view of the facts placed before us. It seems to me that the decider, whether it be the Secretary of State, an Adjudicator or the court, should base a decision on the actual state in which the appellant may find himself, whether or not it is rationally justifiable. This appears to be consistent with the emphasis in the judgment of the E Court HR in Tomic v United Kingdom (Application no 17837/03) (unreported) 14 October 2003 upon the risk of harm capable of engaging the responsibility of the respondent government. That decision concerned the admissibility of an application founded on the claim that Article 3 was engaged, but the principle seems to me to be the same, founded upon the effect of powerful humanitarian considerations. Similarly, in D v United Kingdom … the court, in admitting a claim under Article 3, was concerned with the effects upon the applicant and the certainty that he would suffer severely in the absence of suitable medical facilities in St Kitts to treat his condition. I would mention also that this should not entail the adoption of a process of comparing levels of care in the expelling country and the receiving country, and I fully agree with the observations of my noble and learned friend Baroness Hale of Richmond in that respect in paragraph 63 of her opinion. 77. On the facts which were before your Lordships – which I would emphasise are far from up-to-date – I am compelled to conclude that an Adjudicator might arguably hold that a sufficiently fundamental breach of the appellant's Article 8 right to the preservation of his mental stability had been established to engage that Article. The Adjudicator would then have to consider the effect of Article 8(ii), which will require the striking of a fair balance, in the manner referred to by Lord Bingham of Cornhill in paragraph 20 of his opinion. This has not received consideration by the Secretary of State or the judge. The factors which would have to be assessed on the application of Article 8(ii) are potent indicators in favour of upholding the operation of immigration control and affirming decisions to refuse entry to persons such as the appellant. I could not be fully satisfied, however, that the case is so clear in favour of upholding the decision to remove the appellant that no reasonable Adjudicator could hold otherwise. 78. I accordingly conclude, not without very considerable hesitation, that for the reasons which I have given the decision of the Secretary of State must be set aside. In so holding, however, I have to emphasise that the decision of the House goes no further than to determine the question of law submitted to it whether the Secretary of State was justified in ruling out an appeal in limine on the ground that the appellant's allegation was manifestly unfounded. We cannot attempt to say how the case will appear before an Adjudicator who has full information of the current state of the appellant's mental health and the facilities which will be available to him in Germany and is in a position to test the evidence of the appellant and the reliability of any medical opinions adduced. Still less can we give any indication how we think the Adjudicator is likely to decide the substantive issue if an appeal is brought from the decision to remove the appellant."
Both Lord Walker of Gestingthorpe and Baroness Hale of Richmond took a different view in favour of allowing the appeal of the Secretary of State upholding his decision that the certification of Mr Razgar's case as manifestly unfounded was properly issued. After dealing with issues as to the likely treatment of Mr Razgar in Germany, Lord Walker continued as follows at paragraphs 37-39 of his judgment:
"37. … Even in the most enlightened host country asylum seekers often have to deal with bleak accommodation or even loss of liberty, public hostility and material deprivation and these (on top of their earlier, sometimes horrendous, experiences) naturally lead to anxiety, depression and feelings of hopelessness. But neither the truism of human imperfection, nor the evidence (taken at its highest) of conditions in Germany, leads to the conclusion that the appellant's treatment in Germany would probably be so much worse in his present condition as to amount to a flagrant infringement of his human rights – an infringement so serious as would (in the language used in Devaseelan ) result in the rights in question being completely denied or nullified. In my view, it would need much clearer and more compelling evidence to lead to that conclusion. 38. The Court of Appeal … referred to the Dublin Convention but did not discuss its significance. It treated this as a "mixed" case to which it proposed (pages 538-539 para 22) a novel three-stage test requiring the prospect of harm sufficiently serious for Article 8 to be engaged, but not (as I read the judgment) anything wholly exceptional. The relevant paragraph is set out by Lord Bingham in his opinion (para 4 above). Lord Bingham does not consider that the Court of Appeal fell into the error of comparing levels of psychiatric care available in the United Kingdom and Germany respectively. But for my part I cannot avoid the conclusion that that was the Court of Appeal's only or principle concern, and that it did amount to a mistaken approach. On this point I respectfully prefer the analysis of my noble and learned friend Baroness Hale of Richmond, whose opinion I have also had the advantage of reading in draft. 39. Had the Court of Appeal not (as I think) erred in its approach, I would not differ from the experienced judges below in their rejection of the Secretary of State's assessment of the facts and his consequent certificate under Section 72(ii)(a). As it is, I differ from the courts below and from the majority in this House only with the greatest possible diffidence. I do so because in my opinion (even if it seems callous) this case is simply not exceptional in the way that the Strasbourg court had in mind in Bensaid and Henao . It is, sadly, all too common."
[57]Finally we refer again to the judgment of Baroness Hale who, following from the analysis which she had made as summarised at paragraphs 54-59 of her judgment (which we have quoted above), then noted that Mr Razgar's degree of social integration into this country was nowhere near strong enough to make this a 'domestic' case. She then continues as follows:
"61. … This is a 'foreign' case in which the United Kingdom's responsibility is only indirectly engaged as a result of what might happen to him if removed. The meat of his case, as summed up by Richards J, 'was that the claimant's health would suffer a serious decline in Germany by reason, in particular, of the lack of appropriate treatment; it would have to deteriorate to the point where his condition was acute, that it so say where he became a suicide risk, before treatment could be assured. By contrast, if he stayed in the United Kingdom he could expect to receive appropriate treatment and to make progress.' (Paragraph 51). 62. Dr Sathananthan had diagnosed post traumatic stress disorder and depression, for which the appropriate treatment was medication and cognitive behavioural therapy. The claimant had been receiving medication and some counselling but not the cognitive behavioural therapy, apparently because his English was not yet good enough. Such therapy is in any event in short supply, so that whether it would actually become available is a matter of speculation. But clearly, he was currently managing without it. Its aim would be to make him better, not to prevent a serious deterioration in his mental state. The fact that it might not be available to him in Germany does not engage his Convention rights under either Article 3 or Article 8. Nor does the evidence suggest that the medication is essential to prevent a serious deterioration: this is not a case of psychosis in which there is a very real risk of a return to hallucinations if medication is not available. 63. Similarly, the complaints he makes about life in Germany compared with life here cannot be sufficient to engage his Convention rights….The issue is whether his situation in Germany would raise the serious humanitarian concerns raised in D v United Kingdom … or otherwise constitute such a serious threat to his physical and moral integrity as to be disproportionate to the legitimate aim which his removal would serve. 64. Dr Sathananthan was of the opinion that 'sending him back to Germany or even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself.' I accept entirely that the risk of suicide is capable of engaging the claimant's rights under Articles 2 and 3 and Article 8 and must be given very serious consideration by the decision-maker. There is a positive obligation under the Convention to take reasonable steps to prevent a vulnerable person in custody from committing suicide: see Keenan v United Kingdom [2001] 33 EHRR 913 . If there were substantial grounds to believe that the authorities responsible for him in Germany would not take such steps, then I would accept that his Convention rights were engaged and that the Secretary of State could not properly certify that his claim was manifestly unfounded, at least without making further enquiries or seeking further assurances from the German authorities. This is not the case. Mr Koestler's report specifically states that 'your client will only receive medical treatment in case of actual danger to himself or to others'. The Secretary of State is entitled to asylum that the German authorities will observe their Convention obligations to the claimant unless there is better evidence than this that they will not. 65. For these reasons, I would hold that the Secretary of State was entitled to reach the conclusion he did on the material before him and would therefore allow this appeal. I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go. In my view, those obligations are not such as to require the United Kingdom to refrain from returning Mr Razgar to Germany in accordance with the Dublin Convention."
The approach to proportionality of removal[58]It is in our view implicit in all the passages from Razgar which we have quoted that the degree of deference to be accorded to the decision of the Secretary of State where he has made a decision on accepted facts which are not contentious, is that stated in Edore but that in the view of those who dismissed the Secretary of State's appeal, such an approach was not justified because the Secretary of State had not applied his mind to the question of Article 8 rights for Mr Razgar. That is not the position in the present case because in his extensive correspondence with the respondent the appellant's solicitor had submitted Dr Coleman's psychiatric report of 14 July 2000 as a result of which the respondent had on 17 July 2000 informed his solicitors that they did not now require to interview the appellant. At that time his representatives believed that the appellant's case would be substantively considered in this country for which he continued to press. This resulted in the following response on 1 August 2001:
"Your letter of 9 July 2001 to the South-East Ports Surveillance Team refers. You claim that your client's return to Belgium would be in breach of his human rights under Articles 3, 5, 6 and 8 of the ECHR. The Secretary of State has given express considerations as to whether your client's return to Belgium would breach the United Kingdom's obligations under the ECHR and is confident that this would not be the case. Your client now has a right of appeal against this decision under Section 65 of the Immigration and Asylum Act 1999. I attach the necessary appeal form should you wish to take this course of action."
[59]The only differences which have occurred since then are the two incidents which it is claimed were attempted suicides by the appellant – in respect of which we have already stated our findings - and the reports of Dr Patterson which in all material respects confirm the diagnosis and opinion previously given by Dr Coleman, including his views as to suicide risk which were based upon the nature of the appellant's diagnosed mental condition. These do not in our view amount to changes of any real substance from the position which existed at the date of the respondent's decision where he makes it clear that he has taken into account the Articles upon which the appellant's representatives had placed reliance before confirming his earlier decision for removal to Belgium under the Dublin Convention.[60]Although we consider that the appellant has no greater prospect of succeeding in his claim under the Refugee Convention on the basis of his past history taken at its highest in Belgium than he would in this country by reason of the substantial change in country conditions there, this does not mean that there is any reason to consider that the Belgian authorities would not, as they are bound to do by their signature to the European Convention, properly consider whether removal from Belgium to Sri Lanka would lead to a breach of the appellant's protected human rights under either Articles 3 or 8 of the European Convention. For the reasons which we have already explained, we do not consider that on the evidence currently before us removal from the United Kingdom to Belgium or even to Sri Lanka would engage Article 3. Insofar as we are concerned with the 'foreign' aspect of the appellant's Article 8 claim – namely the deterioration in his mental condition with the attendant risk of completed suicide which it is claimed would apply if he were removed to Belgium – that also is a matter which would be properly for the consideration of the Belgian authorities who would be in a position to assess whether indeed there had been the adverse effect for which Doctors Coleman and Patterson contend in their various medical reports by the removal to Belgium. There is no evidence before us to suggest that the Belgian authorities would not take into account the medical reports which we have seen and we would certainly expect by reason of their nature that the Secretary of State would ensure that they were brought to the attention of the Belgian authorities who have accepted the responsibility for the consideration of the appellant's asylum and human rights claims. The major difference is that the 'domestic' nature of the appellant's Article 8 claim – namely the level of support which he currently enjoys from those with whom he lives and is in close contact as previously identified – would have no application in Belgium because his removal would deprive him of that current support network. Accordingly, the area for our consideration is whether the actual removal would be disproportionate by reason of the loss to the appellant of that support network and that removal of itself would so enhance the claimed suicide risk as to make this one of those truly exceptional cases where it would amount to a flagrant denial of his human rights under Article 8(i).[61]We have already referred to M (Croatia) which is a starred decision of the Tribunal and as such binding both upon us and upon Adjudicators. In that decision the Tribunal reviewed the proper approach on the basis of the judgments in the Court of Appeal in Edore , Razgar and Djali v SSHD [2003] EWCA Civ 1371 . In the latter case the Court of Appeal considered the third possible situation where the Secretary of State had not taken any decision on proportionality of removal under Article 8 because it had not been raised with him. The guidance given by the Tribunal is set out at paragraphs 27 and 28 of its decision in the following terms:
"27. In each case, however, the appellate body has to have regard to the interests of immigration control, and it will usually be a very weighty consideration indeed. In view of the consistent recognition by the Court of Appeal in Edore , Razgar and Djali that the proportionality of removal is essentially a matter for the Secretary of State within the limits of individually defined reasonableness, the two approaches which we have discussed should not yield differing results as Dyson LJ expected. It was a pragmatic aim of enabling the decision-making process to proceed which underlay those decisions and not a desire for the judiciary to determine how significant immigration control and its procedure was. The way in which that independent decision is reached must reflect the Secretary of State's primary role in the assessment of proportionality, the fact that it is pragmatism which puts the judiciary in the position of making the assessment in certain circumstances and the judicial expectation that the two sources of assessment would rarely lead to different answers. In our judgments, Adjudicators and the Tribunal should grapple with the issue of proportionality in the following way, so as to achieve a degree of consistency and to recognise the weight to be attached to immigration control and the system for its maintenance. 28. The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicator should regard Shala , Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that the decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, e.g. through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality. We cannot think of one at present; it is simply that we cannot rule it out. This decision is starred for what we say about proportionality."
[62]It was Mr Middleton's submission to us that M (Croatia) should no longer be regarded as good law and binding upon us by reason of the passage at paragraphs 16-20 of Lord Bingham's judgment in Razgar which we have set out earlier in this determination. For the reasons which we have explained, that in our judgment is to take far too superficial a view of the scope of that passage. The arguments as to the weight to be given to the Secretary of State's executive decision on proportionality are fully set out in the Court of Appeal judgments in Razgar which were the subject of consideration in the House of Lords. Although what was said in the Court of Appeal is the subject of criticism on various points in the course of the judgments in the House of Lords, there is no suggestion that such an approach to the weight to be given to an executive decision is in principle wrong. As we have observed the issues to be considered set out at paragraph 17 of Lord Bingham's judgment are in all respects similar to those set out by the Tribunal as the step-by-step approach in Nhundu and Chiwera [01/TH/00613] . The passage in Razgar on which Mr Middleton relies is taken from paragraph 20 where Lord Bingham says:
"On appeal the Adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State"
. Immediately after saying that "the Secretary of State must exercise his judgment in the first instance". We do not read the passage relating to the task of the Adjudicator to be treated otherwise than on the basis that it is the task of the Adjudicator to reach his own conclusion on the issue of proportionality, paying due deference to the executive decision of the Secretary of State already taken or, where none has been taken or its factual basis is so undermined by the Adjudicator's subsequent factual findings that he must substitute his own decision as to proportionality, reaching it on the basis of the considerable weight to be paid to the public interest which the executive decision of the Secretary of State represents. That this is the proper approach of the court to executive decisions is, with respect to Mr Middleton's argument, trite law which extends to issues with which administrative courts and Tribunals are concerned generally. We see no arguable basis for suggesting that the words of Lord Bingham are to be construed as giving an Adjudicator an unfettered discretion. It seems to us that it clearly follows that this cannot be the proper interpretation having regard to the approval with which he cites the words of the Tribunal in Kacaj at the end of the passage in question. It remains, therefore, that the approach to be applied by the Adjudicator and the Tribunal is that set out in M (Croatia) .[63]The difficulties of an appellant in the present type of appeal are clearly underlined by the language used in the judgments in the House of Lords in Razgar and it is for that reason that we have set them out in such detail above. The whole tenor of the judgments is that the interest of the state in effective immigration control will usually outweigh or trump the private rights of the individual appellant save in the most exceptional circumstances where removal would effectively result in the complete denial of those rights.[64]As Mr Middleton acknowledged in his oral submissions, it is inevitable that medical opinion as to suicide risks will be speculative. It is those opinions which are central to this case and it is only if no reasonable Secretary of State could have reached the conclusion that removal was a proportionate response to the facts before him that the appellant can succeed before us, whether this appeal is approached on the basis that the Secretary of State has made an informed decision on the essential factual basis of the claim or that what has occurred since his decision is additionally to be taken into account as fresh and different evidence.[65]The 'domestic' element of disruption of his current living arrangements could not of itself make removal disproportionate save by reference to the effect anticipated on his mental state and the consequences of this.[66]Where an appellant claims that he will kill himself rather than be removed, as has this appellant, the Tribunal or the Adjudicator is bound to exercise considerable care in evaluating the effect of the evidence before him.[67]The issue of potential suicide has been considered by the Tribunal on a number of occasions. First in [2003] UKIAT 00017 P (Yugoslavia) where it was accepted that it could, as now universally acknowledged, potentially engage Articles 3 and 8 by reference to the Strasbourg Jurisprudence and in particular D v UK and Bensaid v UK , to further consideration of which we shall return shortly. It was next considered in [2004] UKIAT 00053 N (Kenya) where the Tribunal took the view that there would need to be the clearest possible evidence of a real risk that suicide would occur which would not otherwise be preventable by appropriate medical supervision both on the part of the removing country and having regard to facilities which might reasonably be expected to exist in the country of destination (paragraph 21 of N (Kenya) . Most recently the Tribunal considered this issue in KK (Risk-return-suicide-Roma) Serbia and Montenegro [2004] UKIAT 00228 . The appellant was not successful in any of those appeals.[68]In Article 2 claims, the Tribunal has held that the threshold to be reached before that Article is engaged is a near certainty of death (see Minakovo [01/TH/1400] ). In the claimed suicide cases, it seems to us that a similar rigorous approach is required as was reflected in the passage in N (Kenya) to which we have referred. Evidence of past attempts at self-harm and the seriousness of such attempts is clearly highly relevant to the assessment to be made depending, as is acknowledged, on evidence which must be regarded as to some degree speculative. In this connection it is instructive to consider the medical evidence which was before the European court in Bensaid where Mr Bensaid was a diagnosed schizophrenic suffering from a psychotic illness which can result in delusions, hallucinations, disordered or fragmented thinking and catatonic movements as positive symptoms during acute psychotic episodes. Negative symptoms, associated with long-term illness, include feelings of emotional numbness, difficulty in communicating with others, lack of motivation and inability to care about or cope with everyday tasks (paragraph 7). At paragraph 16 the judgment records:
"The applicant obtained opinions from his psychiatrist as to the likely effect of removal to Algeria. In a letter dated 24 March 1998, Dr Johnson stated that there was a high risk that the applicant would suffer a relapse of psychotic symptoms on returning. The requirement regularly to undertake an arduous journey through a troubled region would make the risks still higher. She pointed out that when individuals with psychotic illnesses relapse, they commonly have great difficulty in being sufficiently organised to seek help with themselves or to travel. For this reason, it was necessary for the management of such illnesses to be local and readily accessible. It was therefore very unlikely in these circumstances that any relapse of the applicant would be effectively treated. In a supplementary report of 7 July 1998, Dr Johnson stated that any suffering which might accompany a relapse would be likely to be substantial. When the applicant's illness had been severe, he had lost all insight into the fact that he was ill and believed the persecutory delusions and abuse which he experienced, including voices telling him to harm other people. He had previously felt sufficiently depressed and hopeless that he contemplated suicide."
[69]At paragraph 21 of the judgment it says: "In a further opinion dated 20 May 1999 sought by the Immigration Service with the applicant's consent, Dr Johnson reported that, when seen in February 1999, the applicant showed some signs of deterioration, with his auditory hallucinations having become more intrusive and with thoughts about harming himself and voices telling him to harm himself ('positive symptoms'). He had been unable to sleep because of this. His Olanzapine had been increased and he had responded to this. However, he continued to have considerable difficulties with motivation and social withdrawal ('negative symptoms'). The applicant's mental illness was likely to be a long-term one. She would expect that he would continue to have positive symptoms, which would persist and could worsen, though controlled to a substantial degree by Olanzapine. At times, he might require urgent help with these symptoms. There had been a significant deterioration in his level of social functioning likely to be attributable to negative symptoms and which was likely to be significantly handicapping in the coming years. With continuing medication and support from the mental health services, however, he would be likely to remain at the same level and not require very long periods of institutionalisation. Nor was he at a very serious risk of suicide. If however the applicant was returned to Algeria, she stated that she would be more uncertain of the prognosis. She thought it was: 'highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria…his fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell…If he were unable to obtain appropriate help, if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others… Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect'.[70]Notwithstanding that medical evidence, at paragraph 49 the court found that the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care was to a large extent speculative. Dealing with the Article 8 claim and having accepted that "mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity" and that "the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life", the court continued at paragraph 48 as follows: "Turning to the present case, the court recalls that it has found above that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the UK where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims.[71]It seems to us that a consideration of the factual basis of the claim in Bensaid and the approach of the European Court strongly underlines the degree to which evidence which is by its very nature speculative as to future intention must be approached with great caution, particularly when it is to be weighed against the state interest in the maintenance of effective immigration control. In dealing with the risk in the United Kingdom the Tribunal in KK , where the appellant had made a similar claim that he would kill himself rather than be removed, dealt with this aspect of his case as follows:
"23. … This part of the appellant's case does not revolve upon the adequacy of the facilities in the receiving state. Rather, it seeks to prevent the Secretary of State informing the appellant of an event that the appellant would construe as adverse. In our judgment, this is a far-reaching claim. It presupposes that the medical facilities within the United Kingdom will not be sufficient to contain the risk. Furthermore, it presupposes that, if the Secretary of State chooses to arrest and detain the appellant, the secure accommodation in which he will be kept will be insufficient to contain the threat of suicide. 24. We are bound to express our reservations as to whether this permits the appellant to prevent the Secretary of State (or the Adjudicator or the Tribunal) threatening to remove him. It is not a claim that is often raised in the context of civil litigation. If, for example, a person is threatened with eviction upon service of a notice to quit or court order, we doubt whether, if the litigant threatens suicide, Article 3 of the ECHR would prevent the service of either a notice to quit or a court order. We would expect the response to be that there are adequate medical or legal facilities in the United Kingdom capable of minimising the risk, albeit without preventing it completely. The risk of suicide cannot, in our judgment, be separated from the means of preventing it. In the case of this appellant the means are limited to the provision of medication, the level of which has varied from time to time as his condition has altered. 25. We do not think that the threat of removal or detention or the commencement of the process of removal in the United Kingdom would violate the appellant's human rights."
[72]The evidence before us is that this appellant receives some limited counselling but that any effective treatment of his condition depends upon his being assured that he will not be removed from this country. We see no reason to differ from the approach taken by the Tribunal in KK as to the risk here. It depends essentially, as we have already said, upon a stated claim of an intention to commit suicide in circumstances which in truth differ little from those which have applied to this appellant since his arrival here or, at least, since the initial decision of the Secretary of State to remove him to Belgium under the Dublin Convention. Looking at the totality of the evidence before us, we differ, as we have said, from Dr Patterson in that we do not view the two claimed suicide attempts as evidencing a real intention on the part of the appellant to do himself irreparable harm and we take into account that had this been his real intention, there has been ample opportunity to do so over a period of many years. The risk, it seems to us, is more properly to be ascribed to that applicable to anyone suffering from PTSD and depression in the way which the medical reports make clear. It is a function, according to the reports, of those conditions that there is an enhanced suicide risk in comparison with the degree of risk of suicide to the generality of the population. That statistic is not quoted but it seems to us that it must be very low. It is crucial to the consideration of whether the individual claimant can be said to fall into one of those exceptional cases where relief should be given that the risk arising from suicide is said initially to arise purely on a statistical basis by reason of the mental condition diagnosed, rather than by reference to the individual characteristics of the particular claimant. This appears quite plainly from the passages from Dr Coleman's first report quoted at paragraph 11 above and from Dr Patterson's report at paragraph 19 above. In other words, from a clinical point of view, the suicide risk exists statistically as an effect of the diagnosed mental condition alone. That is not exceptional but the norm and must on that basis apply to a substantial number of asylum seekers. It cannot, of itself, lead either to a breach of Article 3 or of Article 8, either by engaging it or, where it is engaged, in terms of proportionality of removal in the public interest. Much more is needed relative to the individual claimant alone in order to lift his or her case to the wholly exceptional level necessary to engage either Article, or to render removal in the public interest disproportionate under Article 8(2). Save possibly in the most exceptional case, any suicidal ideation is in any event a matter which the Secretary of State is able to take fully into account in the way in which he deals with the removal of the appellant in order to minimise any such risk being carried into practical effect. In Belgium, there is no evidence before us which suggests that similar medical provision cannot be made for this appellant or that the Secretary of State will not fully communicate the extent of his current condition as disclosed by the reports to the Belgian authorities. They will be able to make their own judgment as to whether the effect of removal is such that this is one of those very rare cases where the pressing humanitarian needs are of such exceptional and compelling strength as to engage either Article 3 or Article 8 of the European Convention so as to prevent removal to Sri Lanka. At the present time, it seems to us that any such risk arising from the lawful removal of this appellant to Belgium remains speculative in the sense that such issues were approached in Bensaid .[73]As the House of Lords judgments in Razgar make plain, exceptional cases engaging Article 8 to the degree that removal will be disproportionate need to be identified on a case-by-case basis. But, whilst we are certainly not unsympathetic to the appellant, we do not regard his case as being of such an exceptional and compelling nature as would render removal to Belgium in pursuance of lawful public policy disproportionate.[74]It follows that for somewhat different reasons, which we have felt it necessary to explain at greater length than the Adjudicator, we reach the same conclusion as he did. This appeal is dismissed. J BARNES VICE-PRESIDENT

Cited in 2 later judgments